Fair Work Act 2009

s.365 - General protections

Canberra 197LC Pty Ltd & Pro-Invest Canberra 197LC Pty Ltd

Application to deal with contraventions involving dismissal - whether Applicant was dismissed - no dismissal.

• [1] Ms Yao Yu Yao (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 for the Commission to deal with general protections contraventions involving dismissal. She claims that she was dismissed from her employment with the Canberra 197LC Pty Ltd and Pro-Invest Canberra 197LC Pty Ltd (Respondent) because she exercised a workplace right.

• [2] The Respondent raised two jurisdictional objections. The first is that the Applicant was not dismissed, and the second is that this application was made outside the 21-day time frame allowed by the Act.

• [3] A dismissal is a fundamental prerequisite that must be established before the Commission can exercise powers under s.368 of the Act to deal with a dispute about whether a dismissal was in contravention of the general protections provisions.[1]

• [4] A hearing was conducted on 16 September 2025 to determine the jurisdictional objections. At the hearing, the Applicant was self-represented and Ms A Isacson appeared for the Respondent.

• [5] Section 386 of the Act relevantly provides that a person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

• [6] There is no suggestion in this case that the Applicant was forced to resign and so the question for determination is whether the Applicant's employment was terminated at the Respondent's initiative.

• [7] For the reasons outlined below, I find that the Applicant was not dismissed within the meaning of the Act and accordingly it is not necessary to determine whether the application was made within time.

• [8] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[2] Deputy President Sams noted the following when considering whether the applicant in that matter was dismissed:

1. Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. 'Initiative' is relevantly defined in the New Shorter Oxford Dictionary as: "the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act."

• b. This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd[3] (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, '... a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.'

'In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.'

• d. A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd[4] said, '... to constitute termination at the initiative of the employer the termination must be the direct or consequential result of 'some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...' [Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].

• [9] The Applicant was employed on a casual basis as a housekeeper at one of the Respondent's hotels located in Canberra. She was initially employed in April 2023 and resigned in September 2023. She commenced a second period of employment with the Respondent in February 2025, and she made this application on 12 July 2025.

• [10] The Applicant says she worked regular and consistent shifts across her period of employment, and this created a reasonable expectation of continuing employment. She says she took a period of 'leave' on 4 June,7 June and again on 9 to 15 June, and she sent a text message to her manager on 15 June to provide her ongoing availability. She says she did not receive a reply from her manager and was not rostered for further shifts. She said that she considered she was dismissed from 25 June 2025 because she had not been given further shifts since her period of leave.

• [11] The Applicant's final text message to her manager, sent on Sunday 15 June 2025, was in the following terms:

"Hi Chuni, I can work any day next week except Friday and Sunday. Thanks!"

• [12] It is not in dispute that the Applicant did not make contact with the Respondent after this text message and made this application to the Commission on 12 July 2025.

• [13] The Applicant said that given the contents of her email of 15 June, she did not think she needed to provide her availability to her manager again. However, during the hearing, she said she was unsure of her availability after the week commencing on 16 June 2025.

• [14] Having considered the evidence, I find that the Applicant's employment was not terminated at the initiative of the Respondent for the following reasons.

• [15] While the Applicant contended that her shifts were consistent, I am not satisfied on the evidence that this was the case. The text exchanges between the Applicant and her manager from 5 May 2025 onwards show that the Applicant's availability changed regularly. The changes were for a range of reasons including her university schedule and her work with another employer.

• [16] I accept the evidence of the Applicant's manager that the Applicant had maintained regular communication with her about her availability.

• [17] The Applicant's text message of 15 June makes it clear that she was providing her availability for the following week only, and not her availability on an ongoing basis. In any event, she made no further contact with the Respondent and made no inquiries as to whether she would be rostered for further shifts.

• [18] The roster for the week beginning 16 June had already been finalised when the Applicant sent the text message on 15 June to her manager, and the Applicant agreed that the earliest she would expect to be rostered was the following week, however she did not provide her availability for that week.

• [19] It was reasonable and unremarkable, in my view, that her manager would not put her on the roster in these circumstances.

• [20] Once this application was made, the Respondent took steps to confirm with the Applicant that she had not been dismissed and offered her further shifts, however the Applicant declined this offer.

• [21] In these circumstances, I am not satisfied that the Applicant's employment was terminated at the initiative of the Respondent. Accordingly, this application is dismissed.

A Isacson for Canberra 197LC Pty Ltd & Pro-Invest Canberra 197LC Pty Ltd.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

[2] [2012] FWA 2473.

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